Nevada Re-Discovers the Public Trust Doctrine

The Nevada Supreme Court was the source of a pleasant surprise earlier this month, when it issued a decision formally “adopting” the public trust doctrine as Nevada law.

The opinion, Lawrence v. Clark County, involved a proposed transfer of land in and adjacent to the Colorado River near Laughlin, Nevada to Clark County officials. Nevada state legislation directed the state land agency to acquire federal land within Clark County limits and then transfer it to the county. The Nevada State Land Registrar deeded most of the land to Clark County, but declined to transfer 330 acres of land adjacent to the Colorado River that he believed was sovereign land that was non-transferable under the public trust doctrine. Clark County officials sued in state court to compel transfer of those 330 acres.

The Nevada Supreme Court’s unanimous decision in Lawrence explicitly embraces public trust principles, although it leaves the ultimate fate of the disputed river shoreline areas in doubt. “[W]e clarify Nevada’s public trust doctrine jurisprudence by expressly adopting the doctrine and determining its application in Nevada, given the public’s interest in Nevada’s waters, and the law’s acknowledgment of that interest.” The court painstakingly traced the development of the public trust doctrine from the Roman Emperor Justinian, through the common law courts of England, to the United States in the nineteenth century. Critically, the justices held the doctrine embodied in the Nevada state constitution and statutes, and as arising “from the inherent limitations on the state’s sovereign power.”

The court remanded the case to the trial court to determine whether the disputed lands were in fact part of the beds and banks of the Colorado River at the time of Nevada’s achieved statehood. If so, the property would constitute state sovereign lands impressed with the public trust.

The key question is, what happens now? When state appellate courts in Arizona and Idaho similarly embraced the public trust doctrine as part of their jurisprudence, the legislatures of both states quickly enacted legislation to circumscribe the court rulings. And 30 years ago, immediately after the California Supreme Court confirmed the public trust’s applicability to the bed and banks of Lake Tahoe in that state, the Nevada legislature promptly responded with a law granting the state’s sovereign interest in the shoreline of the Nevada portion of the lake to private upland owners. Earlier this year (and as reported recently on Legal Planet), Nevada politicians enacted legislation that will withdraw Nevada from the bistate Tahoe Regional Compact unless California agrees to fundamental changes in the Compact that would facilitate development in the Lake Tahoe Basin that straddles the California-Nevada interstate boundary.

The Nevada Supreme Court’s Lawrence decision represents an important, positive development in American public trust law. Whether it remains on the books, however, remains very much an open question.

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Reader Comments

Professor Frank aptly summarizes the succinct and well researched opinion of the Nevada Supreme Court but ends on a somewhat dark note, suggesting that that state’s legislature may attempt to undo it. This could happen but I am optimistic as to the ultimate result. The legislatures of Idaho, Nevada and Arizona have all attempted to limit the scope of the trust by eliminating water rights from trust considerations, redrawing trust boundaries and restricting judicial review. The last attempts, in Arizona, were both invalidated by that state’s appellate courts. First, an attempt to quitclaim all but a handful of that state’s rivers was struck down in Arizona Center v Hassell, 837 P.2d 158 as violative of the state’s separation of powers doctrine and gift clause. Then the legislature, playing Wiley Coyote to the public trust’s road runner, attempted to exclude public trust considerations from a water rights adjudication. This time the state’s supreme court struck down the legislation, reiterating its separation of powers views and stating “The public trust doctrine is a constitutional limitation on legislative power to give away resources held by the state in trust for its people,” and that “[t]he Legislature cannot by legislation destroy the constitutional limits on its authority.” San Carlos Apache Tribe v Superior Court, 972 P.2d 179 (Az 1999). Significantly, the Nevada court cited both Hassell and San Carlos in support of its conclusions.

Although the earlier Idaho and Nevada water rights and boundary statutes have not undergone judicial review, it’s likely that they wouldn’t survive the hurdles presented by those state constitutional doctrines, let alone the conclusion reached by the U.S. court in Illinois Central that the trust is inherent in state sovereignty and thus inalienable. (also cited in Lawrence). In Illinois Central Railroad v Illinois, 146 U.S. 387, 453, the court said: “The State may no more abdicate its trust over property in which the whole people are interested than it can abdicate its police powers in the administration of government and the preservation of the peace.”

Illinois Central strongly suggests that federal constitutional considerations arising from the admissions clauses and equal footing doctrine also underlie the trust. Absent trust protection, Justice Field stated, “every harbor in the country” would be at the mercy of its legislature. 146 U,S. at 455. See Blumm, Dunning and Reed, Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794, 24 Ecology L. Q. 461 (1997); Wilkinson, The Headwaters of the Public Trust: Some of the Traditional Doctrine, 19 Envtl. L. 425 (1989).

Indeed Richard Epstein, a scholar not noted for his liberalism, has suggested that the takings clause works both ways, imposing limits on the taking of public property for private use as well as traditional takings of private property by government. Epstein, The Public Trust Doctrine, 7 Cato J. 411 (Fall 1987).

Perhaps a federal court in Illinois stated the bottom line most succinctly: “[t]he very purpose of the public trust doctrine is to police the legislature’s disposition of public lands.” Lake Michigan Fed’n v U,S. Army Corps of Engineers, 742 F. Supp. 441, 445 (N.D. Ill. 1990), cited in Blumm et al.

I would just note that it is very difficult to justify the modern scope of the public trust doctrine based on its supposed historical foundations. I understand, of course, that a court may have other reasons/justifications for imposing a trust on public property/tidelands/riverbeds/etc., but we shouldn’t fool ourselves into thinking that such a trust has any historical warrant, either in Rome or at Westminster. See Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines that Don’t Hold Water, 3 Fla. St. U.L. Rev. 511 (1975); Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 Sea Grant L.J. 13 (1976); James L. Huffman, Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol’y Forum 1 (2007).